Crawford v. Herringer

• Decision Date: 16 October 1978
• Citation: 85 Cal.App.3d 544,149 Cal.Rptr. 578
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas H. CRAWFORD, Plaintiff and Appellant, v. Frank C. HERRINGER et al., Defendants and Respondents. Civ. 42275.

Page 578

149 Cal.Rptr. 578

85 Cal.App.3d 544

Thomas H. CRAWFORD, Plaintiff and Appellant, v. Frank C. HERRINGER et al., Defendants and Respondents.

Civ. 42275.

Court of Appeal, First District, Division 2, California.

Oct. 16, 1978.

Hehearing Denied Nov.15, 1978.

Hearing Denied Dec. 13, 1978.

Thomas H. Crawford, San Francisco, for plaintiff and appellant.

Malcolm M. Barrett, Gen. Counsel, Thomas Jackson, Associate Gen. Counsel, Francis F. Chin, Oakland, for defendants and respondents.

McBRIDE, ^* Associate Justice.

This is an appeal from dismissal after a demurrer to the third amended complaint was sustained. The underlying action is (1) to recover money paid by appellant to Bay Area Rapid Transit District (BARTD) to cover his share of the estimated costs of printing an election pamphlet containing candidate qualification statements and (2) seeking to bar BARTD from collecting additional pamphlet costs.

We address the question whether appellant's action "involve(s) the legality of any tax, impost, assessment, toll, or municipal fine" within the meaning of Code of Civil Procedure section 86(a)(1), thus vesting jurisdiction in the superior court.

Appellant's final pleading, his third amended complaint, alleges: (1) Appellant was a duly qualified candidate for election to the BARTD Board of Directors in the general elections held in November 1974. On or about July 11, 1974, the BARTD Board of Directors adopted a resolution providing that each candidate "who elects to file a statement of qualifications shall pay for the publication of such statement by depositing . . . $525.00. . . . "

(2) On or about August 27, 1974, appellant paid to BARTD the sum of $525 as a deposit for the cost of publishing his statement of qualifications. Sometime after January 1, 1975 (after the election) appellant alleges, respondents, "acting without authority illegally (')assessed(') plaintiff an additional charge of $128.65 for the cost of printing voter handbooks." Appellant made a timely challenge demanding the "assessment" be removed. Prior to filing suit appellant "exhausted all administrative remedies to remove the illegal (')assessment.(')"

(3) Respondents incurred costs for printing of voter handbooks which appellant alleges are "substantially in excess of the reasonable costs for such printing"; that they illegally incurred the costs in violation of competitive bidding requirements; that appellant made a timely demand for a pro rata refund of excess costs, but no refund has been made.

(4) "Defendants' administration of the matters related to the printing of voter handbooks in the BART election held in November, 1974, pursuant to Elections Code § 10012 (then § 10012.5) was confused, inept, arbitrary and constituted an unconstitutional interference with the electoral process." ¹

The first ground listed by Code of Civil Procedure section 430.10 for objection to a complaint by demurrer is that "The court has no jurisdiction of the subject of the cause of action alleged in the pleading." Respondents' demurrers to the second and third amended complaints raised that ground, among others.

Code of Civil Procedure section 86 provides as follows: "(a) Each municipal and justice court shall have original jurisdiction of civil cases and proceedings as follows:

"(1) In all cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to five thousand dollars ($5,000) or less, except cases which involve the legality of any tax, impost, assessment, toll, or municipal fine . . . ." Superior courts have original jurisdiction in all causes except those given by statute to other trial courts. (Cal.Const., art. VI, § 10.)

The parties to this appeal agree that if the action here involves the legality of a tax, impost, assessment, toll, or municipal fine it was within the superior court's jurisdiction, whereas if it did not involve such an issue the demurrer was properly sustained. ² Their area of disagreement concerns whether a tax, impost, or assessment is involved here.

The printing charges sued upon here were billed to appellant under the authority of Elections Code section 10012, which provides in part: "The local agency may bill each candidate availing himself of these services (the publication of his qualification statement) a sum not greater than the actual prorated costs of printing, handling, and translating the candidate's statement, if any, incurred by the agency as a result of providing this service. Only those charges may be levied with respect to the candidate's statement and each candidate using these services shall be charged the same." Relying heavily upon City of Madera v. Black (1919) 181 Cal. 306, 184 P. 397, appellant argues that the charges here constituted an "assessment" or tax "levy." He notes specific use of the term "levied" with respect to the charges allowed in Elections Code section 10012.

In Madera, an action was brought in the "recorder's court of Madera" to enforce the city's ordinance imposing a " 'monthly sewage rate or charge for the use of and connection with the sewer.' " The defendants demurrer alleged that the legality of a tax, impost, assessment, etc. was involved and that the action was therefore within the exclusive jurisdiction of the superior court (under former art. VI, § 5 of the Cal.Const., substantially similar to the provisions of Code of Civ.Proc., § 86(a)(1)). The demurrer was overruled in the recorder's court and after trial the defendant prevailed. On appeal, however, the superior court retried the case, giving judgment for plaintiff.

As a preliminary step to its consideration of the validity of the sewer charge (which it struck as beyond the powers of the city), the Madera court was required to determine whether the superior court action should be considered an action within its original jurisdiction or its appellate jurisdiction, the determination depending upon whether a tax, impost, assessment, toll, or municipal fine was involved. The court stated its definitions of some of these terms as follows: "A 'tax', in the general sense of the word, includes every charge upon persons or property, imposed by or under the authority of the legislature, for public purposes. (Perry v. Washburn, 20 Cal. (318) 350; People v. McCreery, 34 Cal. (432) 454.) (P) The word 'impost,' in its broader sense, means 'any tax or tribute imposed by authority, and applies as well to a tax on persons as to a tax on property.' (Smith v. Turner (Passenger Cases), 48 U.S. (283), at p. 407, 12 L.Ed. 702 (see, also, Rose's U.S. Notes).) A 'toll' is a 'sum of money for the use of something, generally applied to the consideration which is paid for the use of a road, bridge, or the like, of a public nature.' Bouvier's Dictionary, title 'Toll.' " (Madera, supra, 181 Cal. at p. 310, 184 P. at p. 400.) It then concluded that the sewer charges constituted both an "impost" and a "toll." Further support was given to this conclusion by the court's discussion of the purpose of vesting original jurisdiction over such matters in the superior court: "The general purpose . . . obviously is to give to the sovereign power of the state, whether exercised generally or locally, the protection of having the legality of any exaction of money for public uses or needs cognizable in the first instance in the superior courts alone. In view of this purpose, it is apparent that the words used should be applied in their broadest sense with respect to moneys raised for public purposes or needs." (181 Cal. at p. 311, 184 P. at p. 400.)

The purpose of vesting superior courts with original jurisdiction in cases involving the legality of taxes has been further explained in Unemp. etc. Com. v. St. Francis etc. Assn. (1943) 58 Cal.App.2d 271, 280-281, 137 P.2d 64, 69: "The intent was that municipal courts should not decide such cases because there would then be no appeal to the higher appellate courts. Most tax cases are test cases. Few involve the validity of the statute. Most tax cases involve the interpretation of the taxing statute and the legality of a levy against a particular taxpayer. It is in the public interest that the Supreme Court should decide such cases in order that such questions can be finally determined for the entire state. If it should be held that municipal courts have jurisdiction of such cases with appeal to the appellate department of the superior court there would be no way of securing a decision that would be binding authority in the state. On close questions there would always be the possibility of conflicting decisions with consequent confusion in the enforcement of tax statutes. It was undoubtedly for these reasons that the Legislature saw fit to deny jurisdiction of such cases to municipal courts."

Courts following Madera have concluded that motor vehicle license fees were "in the nature of a tax" because they raised money for public purposes, such as maintenance of roads, highways and parks (Marin Municipal Water Dist. v. Chenu (1922) 188 Cal. 734, 736, 207 P. 251, 252), that unemployment insurance taxes exacted against employers are taxes within the meaning of the jurisdiction statute (Cal. Emp. etc. Com. v. Citizens etc. Bk. (1946) 73 Cal.App.2d 915, 917, 167 P.2d 752; Cal. Emp. etc. Com. v. Municipal Ct. (1944) 62 Cal.App.2d 781, 784, 145 P.2d 361; Unemp. etc. Com. v. St. Francis etc. Assn., supra, 58 Cal.App.2d 271, 137 P.2d 64), that business license fees are "taxes" for jurisdiction purposes (Cowles v. City of Oakland (1959) 167 Cal.App.2d Supp. 835, 334 P.2d 1069) and that an initiative dealing with sewer user fees involved "taxes" for purposes of applying the constitutional restriction upon use of initiative to change tax policy (Dare v. Lakeport City Council (1970) 12 Cal.App.3d 864, 91 Cal.Rptr. 124, discussing Cal.Const., art. IV, § 23), that a $350 charge levied against an employer and paid to the state whenever an employee died without heirs...